Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

Cas no 2719 (Colombie) - Date de la plainte: 03-FÉVR.-09 - En suivi

Allegations: The National Union of Food Industry Workers (SINALTRAINAL) alleges various acts of anti-union discrimination and interference, including, among others, anti-union dismissals and refusal to bargain collectively

1. 301. The present complaint is contained in a communication dated 3 February 2009 presented by the National Union of Food Industry Workers (SINALTRAINAL).
2. 302. The Government submitted its observations in communications dated 6 December 2009 and 19 February 2010.
3. 303. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 304. In its communication of 3 February 2009, the SINALTRAINAL indicates that the acts of anti-union discrimination described below had taken place at Nestlé.
2. 305. According to SINALTRAINAL, Nestlé Colombia, through certain employees working as process coordinators and department heads, exerts pressure on new employees to dissuade them from joining the trade union organization. SINALTRAINAL also refers to various scenarios involving measures adopted by the company with a view to undermining the trade union organization, including: the transfer (in May 2002, to the Bugalagrande plant) of four workers (Mr Corrales Trejos, Mr Montoya Ortiz, Mr Pérez Restrepo and Mr Suárez Herrera) with more than 24 years of service with the company, without their consent; the implementation of policies for outsourcing (processes for the transport, distribution and marketing of goods); the implementation of programmes designed to dissuade workers from joining a trade union organization (such as the “Nestlé vive bien” programme or its SAP-based GLOBE programme). Moreover, the company denies union leaders free access to the plants; they must be accompanied by the head of human resources, an assistant or security guards, thus restricting the workers’ right to communicate with union leaders. Lastly, the trade union organization’s allegations concern the collective dismissal of workers from the Nestlé Facatativa plant on 27 July 1992 and the refusal to register a new trade union organization in 1982. The complainant organization also refers to other allegations of anti-union dismissals, in relation to which the judicial authority ordered the reinstatement of the workers.
3. 306. At the Nestlé Valledupar plant: (1) on 23 May 2006, after receiving notification that some workers had joined SINALTRAINAL, the company met with workers and threatened them against joining the trade union organization (on 22 May, it had dismissed nine workers who tried to join the organization, but the judicial authority ordered their reinstatement). Moreover, it proposed that they establish a new company trade union organization, which more than 70 workers joined, once it was set up; (2) on 29 May, the company signed a collective agreement with this new union, while refusing to negotiate SINALTRAINAL’s list of demands; on 8 October 2008, SINALTRAINAL requested the labour inspectorate to order the company to enter into collective negotiations; nevertheless, the company was not sanctioned for its refusal to negotiate; (3) on 15 June 2006, Mr Walberto Quintero M., a worker at the Valledupar plant and a member of the SINALTRAINAL complaints committee, filed an out-of-court claim against the company Nestlé Dairy Partners Americas (DPA) on the grounds of the harassment perpetrated by the company since he joined the trade union organization; and (4) on 7 November 2008, the company requested the suspension of the trade union immunity of Mr Luis Eduardo Lúquez Castilla, a leader of the trade union organization, for alleged offences; the proceedings are still under way.
4. 307. At the Bugalagrande plant: (1) in November and December 2002, the company dismissed 12 unionized workers from the plant (including Mr Gustavo Salazar, Mr William Ramírez, Mr Jesús Escobar, Mr Germán Núñez, Mr Magnol Ossa, Mr Fernando Londoño, Mr Enrique Castro, Mr Dulfair Martínez and Mr Vladimir Espinosa) because of their participation in a day of protest in front of company headquarters in Bogotá. Some workers filed an application for legal protection (tutela), which was denied; (2) in 2006, the company dismissed Mr Héctor Marino Lasso, Mr Leonardo Gómez and Mr Luis Fernando Arbeláez without just cause, in violation of the collective agreement in force, the application for legal protection was denied and the ordinary legal proceedings are still under way; (3) in 2006, the company dismissed 90 temporary workers allegedly on grounds of their support to the trade union organization; and (4) in 2007, the Bugalagrande plant dismissed five workers (Ms Edna Lucía Fernández, Mr Diego Lozano, Mr Hebert González, Mr Ignacio Millán and Mr Rogelio Sánchez) in violation of the due process set out under the collective labour agreement in force. The legal proceedings instituted by the workers are pending.

B. The Government’s reply

1. 308. In its communications of 6 December 2009 and 19 February 2010, the Government sent the observations set out below.
2. 309. The Government notes that, according to the information submitted by the company on relations between Nestlé Colombia and its trade union organizations, the company has a strong management framework guiding relations with employees. The criteria are set out in the company’s corporate business principles and human resources policy and the relevant guidelines are in line with local legislation and regulations. The company notes that its corporate business principles reflect its full support of the six guiding principles on human rights and labour of the United Nations Global Compact, namely: (1) respect the protection of internationally proclaimed human rights within the sphere of influence; (2) make sure that their own companies are not complicit in human rights abuses; (3) uphold the freedom of association and the effective recognition of the right to collective bargaining; (4) the elimination of all forms of forced and compulsory labour; (5) the effective abolition of child labour; and (6) the elimination of discrimination in respect of employment and occupation.
3. 310. Nestlé Colombia regularly maintains dialogue with all the legally established workers’ organizations at various levels and provides forums for dialogue in order to strengthen its labour relations and bridge differences. Within these forums, various special agreements have been concluded for improving working conditions. In particular, the company signed a special agreement with the Dosquebradas plant union in order to improve operators’ promotion prospects. At this same plant, with the same trade union organization, a long-term plan of action was signed for the improvement of working and safety conditions at operators’ work stations; this plan of action covered more than 400 activities which are being implemented simultaneously and which have generated investments of more than US$500,000. The Bugalagrande and Mosquera plants have also initiated special agreements of particular interest, all of which seek continuous improvement of the company’s labour relations.
4. 311. With respect to the allegations concerning the company’s implementation of policies to restrict workers’ right of freedom of association, and implementation of policies for outsourcing work, to the detriment of working conditions, the Government notes the following: (1) with respect to the selection of team leaders: the trade union organization has not submitted any evidence in connection with the allegations, which remain vague, thus preventing an in-depth investigation into the matter; and (2) with respect to the company’s use of psychological harassment, the trade union organization should indicate before which court it lodged the complaint against the managers in question so that the status of the respective investigation can be verified.
5. 312. With regard to the allegations on the outsourcing of the distribution processes, the Government notes that, as has been pointed out on various occasions, employers in Colombia enjoy the right to economic freedom, in accordance with article 333 of the Political Constitution of Colombia, under which employers are free to exercise their activities within the limits of the common good. Fair competition is a universal right and carries responsibilities. In exercising this right and in order to ensure efficient service delivery, the company decided to modify its distribution network by centralizing the distribution process at a single logistical hub of operations in the city of Pereira, to serve the whole country, and by outsourcing the operation of its distribution centres to an expert in the field. The Government states that, according to the company, this process was accompanied by a staff relocation programme, without compromising the right to freedom of association. This decision aimed to: (1) improve customer service; (2) reduce the high level of damage to goods during transport and storage; (3) streamline the process; and (4) improve operational efficiency.
6. 313. The Government notes that Nestlé Colombia conducts its industrial operations in five departments in Colombia. Its plant locations and operations are as follows:
   • (a) Bugalagrande – Department of Valle del Cauca:
7. - 603 directly employed workers on open-ended contracts;
8. - 114 workers on fixed-term contracts;
   • - production of 45,000 tonnes/year;
   • - production of food items, coffee, beverages and milk.
     • (b) Dosquebradas – Department of Risaralda:
   • - 449 directly employed workers on open-ended contracts;
9. - 28 workers on fixed-term contracts;
   • - production of 24,000 tonnes/year;
   • - production of chocolate goods and biscuits.
     • (c) Florencia – Department of Caquetá:
   • - 30 directly employed workers on open-ended contracts;
10. - 12 workers on fixed-term contracts;
    • - production of 61,000 tonnes/year;
    • - pre-condensation of fresh milk for food production.
      • (d) Mosquera – Department of Cundinamarca – Nestlé Purina Petcare:
    • - 152 directly employed workers on open-ended contracts;
    • - production of 31,000 tonnes/year;
    • - food for pets, dogs and cats.
      • (e) Valledupar – Department of César (DPA: joint venture between Nestlé and Fonterra):
    • - 183 directly employed workers on open-ended contracts;
    • - one worker on a fixed-term contract;
    • - production of 33,000 tonnes/year.
11. 314. The Government notes that the Ministry of Social Protection, through its labour offices, carries out all inspection, surveillance and monitoring activities in relation to the complaints received by the Ministry. The Government adds that, in its observations, the company noted that its employees must comply with the legislation in force in each of the countries in which it carries out its activities. Nestlé assures that it applies the most stringent rules of responsible conduct throughout the company, complying responsibly with its corporate business principles, which are the basis for its business activities and relations throughout the world and in each of its business sectors. Nestlé recognizes that the process of globalization creates a need to generate ever more international recommendations. Although these recommendations are primarily addressed to governments, these inevitably also affect business practices. Nestlé endorses the relevant commitments and recommendations for its voluntary self-regulation, as issued by the competent sectorial organizations, provided that these have been drawn up with full agreement from all interested parties. These include the Business Charter for Sustainable Development drawn up by the International Chamber of Commerce (ICC). Moreover, Nestlé uses the revised Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation and Development (OECD), approved in June 2000, as a reference point for its corporate governance principles. Nestlé Colombia’s alignment with and attachment to its corporate principles are audited through internal monitoring mechanisms such as its Compliance Assessment of Human Resources, Occupational Health and Safety, Environment and Business Integrity (CARE) audit programme, a tool for verifying that Nestlé’s worldwide markets faithfully apply its corporate principles and implement national and international legislation, especially in relation to the abovementioned matters. There are different phases to this auditing process: phase one covers all the industrial operations of Nestlé’s markets; phase two covers all administrative, sales and distribution areas; and phase three extends to the company’s most strategic suppliers to ensure that they, with their workers, also comply with the corporate and legal guidelines. Nestlé Colombia, as for other markets in the world, must be audited once every three years to ensure its ongoing and continuously improving compliance with the relevant principles and rules. The company adds that the last audit of Nestlé Colombia revealed very satisfactory results, since its compliance rate was above 95 per cent and plans of action and follow-up mechanisms were drawn up to address the remaining 5 per cent. In the first half of 2010, Nestlé Colombia will once again undergo a CARE assessment, in phase two, for the review of its administrative, sales and distribution activities. In addition to this CARE assessment, Nestlé Colombia is also subject to international audits which point to specific operations or business processes that need to be reviewed; these are carried out by the corporate office for internal controls and audits.
12. 315. With regard to the allegations concerning the transfer of Mr Luis Eduardo Pérez Restrepo, Mr Fernando William Corrales Trejos, Mr Gilberto de Jesús Montoya Ortiz and Mr Luis Ernesto Suárez Herrera in 2002 to the Bugalagrande plant, the Government notes that the legal authority rejected the legal proceedings that had been filed for the protection of constitutional rights (amparo), deeming that the company had complied with domestic legislation by applying the principle of ius variandi, respecting the fundamental rights of workers, and had respected the provisions under the collective labour agreement.
13. 316. With regard to the implementation of the company’s programmes, the Government notes that, according to the company, these programmes aim to improve the working environment. Moreover, the trade union organization does not provide information about the legal or administrative proceedings brought before the various authorities, to defend the rights they claim are being undermined by the implementation of the programmes in question.
14. 317. With regard to the allegations concerning the refusal by the company to grant workers’ representatives free access to the workplace, the Government notes that SINALTRAINAL does not indicate the sites to which these allegations refer. Nevertheless, the Office of Cooperation and International Relations received the following response to its request for information on whether any administrative labour investigation had been initiated against Nestlé for anti-union harassment: according to the territorial directorate of Valle, to date, no such investigation has been opened against the company for trade union harassment; and the territorial directorate of César notes that an administrative labour investigation has been opened against the Dairy Partners Americas Manufacturing Colombia Ltd (DPA) for violation of the collective labour agreement.
15. 318. For its part, the company notes that it allows union leaders to access the factory facilities as long as this does not disrupt normal production line operations or distract the operators. The company must ensure that the time frames for entering and leaving the premises and the work shifts are respected. The trade union organization has been given due notice of these rules. The company notes that, to date, the rules drawn up in previous years for gaining access to the factory have not presented any problems to either the trade union organization or any visitors to the company. The trade union organization usually requests authorization for access to the premises, which the company has not denied to date.
16. 319. As regards the allegations concerning the collective dismissal of Nestlé Facatativa workers in 1982 and the refusal to register the trade union organization, the Government notes that the then Ministry of Labour and Social Security, in order to authorize the collective dismissal, had exhausted relevant procedures under domestic legislation. In accordance with the provisions of section 40 of Legislative Decree No. 2351 of 1965 – subsequently replaced by section 67 of Act No. 50 of 1990 – an employer who deems it necessary to carry out a collective dismissal of workers or to terminate work in progress, either partially or fully, for reasons other than those set forth under section 5(1)(d) of the said Act and section 7 of Legislative Decree No. 2351 of 1965, must seek prior authorization from the Ministry of Labour and Social Security, setting out and, if necessary, justifying the reasons. Also, the employer must simultaneously notify the workers in writing of this request. A request for authorization must also be made in the following cases: when the employer needs to modernize work processes, equipment and systems with a view to increasing productivity or the quality of goods, or needs to eliminate work processes, equipment or systems and units of production, including in the event that these have become obsolete or inefficient, or result in systematic losses, or place the employer at a competitive disadvantage with respect to similar companies or goods on the domestic market or those with which the employer should be able to compete on foreign markets; when an employer is in default or in a financial situation where there is a risk of default, or faces technical or economic difficulties, such as a lack of raw materials, or other difficulties that can yield similar effects; and in general, other scenarios yielding similar consequences to those mentioned above. The respective request must be accompanied by due evidence – whether financial, accounting, technical, business or administrative in nature, depending on the case. Workers who were not satisfied with the decision petitioned for its annulment and for the re-establishment of rights before the body handling the case. After a review of the case, it was determined that the claims did not merit further consideration.
17. 320. As regards the alleged refusal to register a trade union organization, the Government notes that this issue has been resolved, since the organization itself mentions its registration by the then Ministry of Labour.
18. 321. With regard to the allegations on the dismissal of 12 unionized workers from the Bugalagrande plant in 2002, the Government notes that the competence for ruling on the legality of the dismissals rests with the judicial authority, not the Ministry of Social Protection. Accordingly, it would be very useful if the trade union organization could provide information on the legal proceedings instituted, so that information can be requested from the respective judicial offices on the status of each case and so that the relevant observations can be sent.
19. 322. With regard to the allegations concerning the dismissal of Ms Edna Lucía Fernández, Mr Diego Lozano, Mr Hebert González, Mr Ignacio Millán and Mr Rogelio Sánchez, the Government notes that Mr Rogelio Sánchez brought the matter before the ordinary labour court, which in the first instance handed down a decision in favour of the company, a ruling which was upheld at the appeal stage. The Government adds that, for the other cases, it would be very useful if SINALTRAINAL could indicate which courts are handling these respective claims so that it can assess the current status of cases and thus be able to send complete information to the Committee on Freedom of Association.
20. 323. As regards the allegations concerning the threats to prevent workers from joining SINALTRAINAL and the subsequent negotiations with another trade union organization, at the Valledupar plant, the Government notes that the territorial directorate of Valledupar, through Decision No. 00455 of 12 December 2008, absolved DPA of its refusal to enter into negotiations. According to the administrative decision, and as demonstrated by the evidence, on 23 May 2006, the trade union organization SINALTRAINAL presented to the company a list of demands and notified it of the composition of the complaints committee, and provided the same notification to the Ministry for Social Protection. On 23 May 2006, DPA workers decided freely and voluntarily to establish another trade union organization – a company, primary-level one – which had a membership of 89 workers. On 24 May 2006, the company’s legal representative notified SINALTRAINAL of the acknowledgment of its list of demands and of the fact that a group of workers had joined another trade union organization, which led to the recommendation that SINALTRAINAL should set out internal procedures for defining certain aspects of the collective bargaining process, since the other trade union organization represented the most workers. Indeed, according to the administrative decision, there are three other trade union organizations in the company, with 113, 97 and 125 members, respectively, while SINALTRAINAL only has 20. Therefore, the company entered into negotiations with the organization in question and, on 14 September 2006, signed a collective agreement with it, effective from 1 September 2006 to 31 December 2009, without prejudice to the right to freedom of association. The appeal lodged against the administrative decision is still pending. The Government notes that, on 21 July 2006, the labour inspector was notified of the signing of a new collective agreement with SINALTRAINAL.
21. 324. With regard to the allegations concerning the anti-union persecution of Mr Walberto Quintero, the Government notes that the trade union organization met with the company in order to address Mr Walberto Quintero’s case, and that the company undertook to respect the right to freedom of association. According to the information provided by the territorial directorate of César, there is currently no pending labour investigation into the case and the trade union organization has not indicated whether legal proceedings have been instituted in this regard.
22. 325. With respect to the allegations concerning the request for the suspension of Mr Luis Eduardo Lúquez Castilla’s trade union immunity, the Government notes that the company requested the suspension of immunity before the labour court of the Valledupar circuit, on the grounds of unjustified absence from work and social security fraud for forging information about his illness. That led the DPA to request the competent authority, the labour court of the Valledupar circuit, to validate the facts, thus leading to the suspension of Mr Lúquez Castilla’s trade union immunity, giving the company just cause for his dismissal. The first instance decision of the second labour court of Valledupar, on 26 June 2009, ordered the suspension of trade union immunity and authorized the DPA to dismiss the worker since just cause was proven. Mr Lúquez appealed against this decision, and the case is currently being heard before the César District High Court, in an appeals procedure.
23. 326. With regard to the dismissal of temporary or fixed-term employees for their support to SINALTRAINAL, the Government notes that it would be very useful if the trade union organization could provide information on the legal proceedings instituted by the dismissed workers in order to check on the progress of cases before the judicial offices. According to the company’s report, which the Government encloses, the list of temporary hires at the Bugalagrande plant was consistently cited as problematic by SINALTRAINAL at meetings and in letters and communications. In 2004, the Bugalagrande plant had a list of 228 persons hired on a fixed-term basis. Recognizing the problem, it revised its recruitment scheme. After a selection process which involved interviews, psychotechnical testing, the validation of documents and other appropriate tests, in 2005, Nestlé Colombia hired 121 of those 228 workers on an open-ended basis, and informed the remaining 107 persons of the results of the selection process. The company subsequently hired 17  more workers, and issued prior notice to the 90 persons whose contracts would not be renewed and paid them more severance pay than that required by law. This group of former temporary workers and the company signed a voluntary consent agreement in October 2006.
24. 327. The company notes that the means of hiring workers on a temporary basis needs to be maintained in order to increase production, carry out specific projects or fill in for absentees. In this context, the company hires staff on a direct and fixed-term basis until those specific needs have been met. Those terms are lawful and the temporary workers are even provided with special benefits under the collective agreement.
25. 328. Some of the 90 fixed-term workers who were not called back by the company after the review of their profile and work presented labour claims against the company, claiming that the company had an obligation to rehire them. In that regard, the company complied with the national labour legislation in force and Nestlé Colombia SA was absolved of the claims against it, thus nullifying all of the complainants’ claims. The company adds that the collective labour agreement in force, signed in June 2006, includes a provision for special benefits to temporary workers, in addition to what is afforded by the law, with which the company complies.
26. 329. As regards the allegations concerning the dismissal of Mr Leonardo Gómez, Mr Héctor Marino Lasso and Mr Luis Fernando Arbeláez, the Government notes that since the former workers had instituted the respective legal proceedings, the Government shall be guided by the decision of the labour court. The company, in its report, notes that Mr Héctor Marino Lasso, Mr Luis Fernando Arbeláez and Mr Leonardo Gómez had been dismissed on the basis of an administrative decision in the context of an internal restructuring process with a view to optimizing the factory’s performance, and that their dismissal was in no way meant as retaliation for trade union activities. This restructuring process resulted in the hiring of 17 additional workers on an open-ended basis and the dismissal of five workers on an open-ended basis – the three persons mentioned above and two others who were not unionized. In that context, section 64 of Colombia’s Substantive Labour Code, which allows for the termination of employment without just cause in exchange for severance pay, was applied. This restructuring process took place after a three-year period during which no unilateral termination had been conducted by the company, which explains the very low turnover rate among operators as compared with administrative or non-unionized employees. Indeed the turnover rate in the plants among unionized staff is less than 2 per cent, and more than 8 per cent among non-unionized employees (working, inter alia, in sales, marketing, administration or management).

C. The Committee’s conclusions

1. 330. The Committee notes that, in the present case, SINALTRAINAL alleges that various acts of anti-union discrimination and interference have been committed by Nestlé at the national level and at its Bugalagrande and Valledupar plants, which currently form part of DPA.
2. 331. The Committee notes in particular that SINALTRAINAL alleges that: (1) the company, through certain high-level employees, exerts pressure on and has dismissed the new employees who have attempted to join the trade union organization; (2) in May 2002, the company transferred four workers with more than 24 years of service with the company (Mr Corrales Trejos, Mr Montoya Ortiz, Mr Pérez Restrepo and Mr Suárez Herrera) to the Bugalagrande plant, without their consent; (3) the company has implemented plans and programmes of work as well as policies for outsourcing, with a view to undermining the trade union organization; (4) the company denies union leaders access to the plants; and (5) the company implemented a collective dismissal of workers at the Facatativa plant in 1992 and refused to register a trade union organization in 1982.
3. 332. As to the allegations concerning the pressure exerted by team leaders on workers in order to dissuade them from joining the trade union organization, the Government and the company note that these allegations are vague and are not supported by evidence and that the trade union organization fails to indicate whether legal or administrative proceedings have been instituted on the basis of these elements. Since these allegations, if proven, would be serious, and recognizing that the trade union organization has not provided sufficient information to enable the Government and company to submit their observations on the matter, the Committee requests SINALTRAINAL to provide further information on the circumstances in which these developments allegedly took place, as well as on the dates and the affected workers. If the trade union organization does not provide this information, the Committee will not pursue its examination of the allegations.
4. 333. As to the transfer, in May 2002, of Mr Corrales Trejos, Mr Montoya Ortiz, Mr Pérez Restrepo and Mr Suárez Herrera without their consent to the Bugalagrande plant, the Committee notes that, according to the Government, the company states that it acted in line with national legislation, respecting workers’ fundamental rights and complying with the collective labour agreement in force.
5. 334. With regard to the allegations relating to the implementation of plans and programmes of work and policies for outsourcing aimed at undermining the trade union organization, the Committee notes that, according to the Government: the company notes that the relations it maintains with the trade union organization are in line with national legislation and regulations and the guiding principles on human rights and labour of the United Nations Global Compact, which are adhered to by the company, and in accordance with which various agreements have been concluded outside the collective agreement between the company and the trade union organization; according to the company, the outsourcing process carried out in the context of the right of employers to economic freedom, with a view to improving services, reducing the damage to goods during transport and improving operational efficiency, included a programme for the relocation of staff without compromising the right to freedom of association; the programmes implemented by the company are aimed exclusively at improving the working environment, and the trade union organization provides no information on the legal claims or proceedings instituted in connection with these programmes in defence of workers’ rights. In this regard, the Committee recalls that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. On the basis of the allegations and the Government’s response, the Committee considers that there is no evidence that the measures constitute anti-union acts, but rather they seem to be general measures for ensuring the company’s normal operations. In these circumstances, unless the organization sends further information in this regard, the Committee will not pursue its examination of these allegations.
6. 335. The Committee notes SINALTRAINAL’s allegations that the company refuses to grant union leaders free access to the plants and that they must be accompanied by company staff each time they wish to access the premises, restricting the workers’ right to communicate with union leaders. The Committee notes in this regard that, according to the Government, the complainant organization does not specify the place where the violations have occured. The Committee notes that, according to the company, union leaders are allowed access to the premises provided that this does not disrupt the normal functioning of the production lines or distract the operators and these rules are applied without posing any problems to the trade union organization or to any visitors to the company. In this respect, recalling that governments should guarantee the access of trade union representatives to workplaces, with due respect for the company’s rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization, the Committee requests the Government to ensure that the company fully respects this principle and that the workers are able to communicate freely with union representatives and without the presence of an enterprise representative.
7. 336. Lastly, the Committee takes note of the allegations concerning the company’s collective dismissal of workers at the Facatativa plant in 1992 and its refusal to register a trade union organization in 1982. In this respect, the Committee notes that the collective dismissal was authorized by the Ministry of Labour and Social Security and that the administrative proceedings brought against that decision were dismissed. As to the refusal to register the trade union organization in 1982, the Committee notes that, according to the Government, this matter has been resolved since the union has been duly registered. In these circumstances, and considering that the allegations date back many years, the Committee will not pursue its examination of these allegations.
   • The Valledupar plant
8. 337. With respect to the allegations concerning the Valledupar plant, the Committee notes that, according to SINALTRAINAL, on 23 May 2006, the company threatened workers against joining the trade union organization and proposed that they set up a new trade union organization, with which it subsequently signed a collective agreement, refusing to negotiate the list of demands presented by SINALTRAINAL. No administrative sanctions were imposed on the company in the context of the claim brought before the Ministry for Social Protection. Moreover, according to the trade union organization, Mr Walberto Quintero, a trade union leader, filed an out-of-court claim against the company on the grounds of anti-union harassment and the company requested the suspension of the trade union immunity of Mr Luis Eduardo Lúquez Castilla, a SINALTRAINAL leader; these proceedings are still under way.
9. 338. In this respect, the Committee notes that, according to the Government, the territorial directorate of Valledupar absolved DPA (which, according to the information provided by the company, is a joint venture between Nestlé and Fonterra) of its failure to negotiate with SINALTRAINAL through Decision No. 00455 of 12 December 2008. The Committee notes that, according to the administrative authority, a new trade union organization was established within the company on 23 May 2006, which submitted a list of demands on 29 May 2006. Since that union represented the most workers, the company decided to sign a collective agreement with that organization for the period from September 2006 to December 2009. The Committee notes that, according to the administrative decision, in addition to SINALTRAINAL, three other trade union organizations coexisted at the plant during that time, with 113 members, 97 members and 125 members respectively, while SINALTRAINAL had only 20. The Committee also notes that the Government adds that the appeals procedure against this administrative decision is still under way and that on 21 July 2006, the labour inspector was informed that a new collective agreement was signed with the trade union organization. The Committee requests the Government to keep it informed of the final outcome of the appeals procedure and to send a copy of the collective agreement in question.
10. 339. With regard to the allegations concerning the out-of-court claim of anti-union harassment lodged by union leader Mr Walberto Quintero and the request for the suspension of the trade union immunity of union leader, Mr Luis Eduardo Lúquez Castilla, the Committee notes that the Government indicates, with respect to Mr Quintero’s complaint, that the company met with the trade union organization and undertook to respect the right to freedom of association and that, according to the territorial directorate of César, there are no pending administrative investigations into these facts and the trade union organization has not indicated whether legal proceedings have been instituted. As to the request for the suspension of the trade union immunity of union leader, Mr Luis Eduardo Lúquez Castilla, the Committee notes that, according to the Government, the company requested the suspension of immunity because Mr Lúquez Castilla forged the certificate he provided as evidence of his inability to work in order to take leave from his job. The Committee notes that, according to the documentation submitted by the company, Mr Lúquez denied these facts during the discharge hearings. Noting that the judicial authority ordered the suspension of his trade union immunity on 26 June 2009 and that the appeals procedure remains pending, the Committee requests the Government to keep it informed of the final outcome of the proceedings.
    • The Bugalagrande plant
11. 340. With regard to the allegations concerning the Bugalagrande plant, the Committee notes that, according to SINALTRAINAL: (1) in 2002, the company dismissed 12 workers for having participated in a protest in front of the Bogotá headquarters and the workers’ application for legal protection (tutela) was denied; (2) in 2006, Mr Héctor Marino Lasso, Mr Leonardo Gómez and Mr Luis Fernández Arbeláez were dismissed without just cause, in violation of the collective agreement in force; (3) in 2006, the company also dismissed 90 temporary workers for supporting the trade union organization; and (4) in 2007, it dismissed five workers in violation of the collective agreement, the legal proceedings for which are under way.
12. 341. With respect to the 2002 dismissals of 12 workers for having participated in a protest, the Committee notes that, according to the Government, the competence for ruling on the legality of the dismissals rests with the judicial authority, not the Ministry for Social Protection, the trade union organization should therefore provide information on the proceedings that have been instituted and before which courts. In this regard, since the allegations date back to 2002 and it is difficult for the Government to present its observations on the matter without further information, the Committee requests the complainant to clarify the circumstances of the dismissals and to provide information as to whether and before which courts legal proceedings have been instituted. If the complainant organization does not provide additional information in this respect, the Committee will not pursue the examination of this allegation.
13. 342. As to the allegations concerning the company’s dismissals without just cause, in 2006, of Mr Héctor Marino Lasso, Mr Leonardo Gómez and Mr Luis Fernández Arbeláez, in violation of the collective agreement in force, the Committee notes that, according to the company, the workers were dismissed in the context of a restructuring process and were duly compensated; this also applied to two non-unionized workers. The Committee notes that, according to the Government, the legal proceedings instituted remain pending before the labour court. The Committee requests the Government to keep it informed of the final outcome of these proceedings.
14. 343. With regard to the allegations that, in 2006, the company dismissed 90 temporary workers for supporting the trade union organization, the Committee notes that, according to the Government, the trade union organization should indicate whether it has instituted legal proceedings in that regard. The Committee also notes that, according to the company: (1) in 2004, the company had 228 temporary workers, and, as a result of the criticism and pressure exerted against it by the trade union organization, it decided to resolve that matter, and thus carried out a series of tests in 2005; (2) the enterprise then hired 121 of those workers on an open-ended basis; and (3) it subsequently hired 17 more persons, and the 90 remaining persons received more severance pay than was required by law and signed a consent agreement with the company in October 2006. The Committee notes that some of the dismissed workers instituted legal proceedings, but the judicial authority absolved the company of the claims.
15. 344. As to the allegations concerning the dismissal of five workers (Ms Edna Lucía Fernández, Mr Diego Lozano, Mr Hebert González, Mr Ignacio Millán and Mr Rogelio Sánchez), in 2007, in violation of the collective agreement, the Committee notes that, according to the trade union organization, the legal proceedings instituted are still under way. The Committee notes that the Government indicates that, concerning the legal action instituted by Mr Sánchez, the judicial authority ruled in favour of the company, a decision which was upheld at the appeals stage, and that, as to the other workers, further information is needed with regard to the courts handling the claims, if it is to be able to communicate its observations accordingly. Consequently, the Committee requests SINALTRAINAL to inform the Government which courts are handling the legal proceedings instituted by the dismissed workers, and requests the Government to keep the Committee apprised of the court rulings in that respect.

The Committee's recommendations

1. 345. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) With respect to the allegations concerning Nestlé’s refusal to grant the leaders of the trade union organization free access to the plants, recalling that governments should guarantee the access of trade union representatives to workplaces, with due respect for the company’s rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization, the Committee requests the Government to ensure that the company fully respects this principle and that the workers can communicate freely with union representatives, and without the presence of a representative of the enterprise.
   • (b) As to the allegations concerning the company’s refusal to negotiate with SINALTRAINAL at the Valledupar plant, and its conclusion of a collective agreement with another trade union organization, the Committee requests the Government to keep it apprised of the final outcome of the appeal against the administrative decision of the Ministry for Social Protection in favour of the company, and to send a copy of the collective agreement that the Government states was eventually signed with SINALTRAINAL in 2006.
   • (c) As to the allegations concerning the request for the suspension of the trade union immunity of union leader Mr Luis Eduardo Lúquez Castilla, from the Bugalagrande plant, the Committee requests the Government to keep it apprised of the final outcome of the appeals procedure against the ruling ordering the suspension of immunity in question.
   • (d) With respect to the dismissal, in 2002, of 12 workers from the Bugalagrande plant for having participated in a protest, noting that these allegations date back to 2002 and that it is difficult for the Government to present its observations on the matter without further information, the Committee requests the complainant organization to provide further information on the circumstances of the dismissals and indicate whether, and before which court, relevant legal proceedings have been instituted. If the complainant organization does not provide additional information in this respect, the Committee will not pursue the examination of this allegation.
   • (e) As to the allegations concerning the company’s dismissal without just cause, in 2006, of Mr Héctor Marino Lasso, Mr Leonardo Gómez and Mr Luis Fernández Arbeláez in violation of the collective agreement in force, the Committee requests the Government to keep it apprised of the final outcome of the pending legal proceedings.
   • (f) With regard to the allegations concerning the dismissal of four workers (Ms Edna Lucía Fernández, Mr Diego Lozano, Mr Hebert González and Mr Ignacio Millán) in 2007, in violation of the collective agreement, the Committee requests SINALTRAINAL to inform the Government of which courts are handling the legal proceedings instituted by the dismissed workers, and requests the Government to keep it informed of the relevant court rulings.